Riepon and Australian Capital Territory - [2021] AATA 1556

Riepon and Australian Capital Territory [2021] AATA 1556 (2 June 2021)
Division:GENERAL DIVISION
File Number(s):2020/1023; 2021/2396
Re:Lisa Riepon
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:2 June 2021
Place:Canberra

The Tribunal has jurisdiction to address the entirety of Ms Riepon’s compensation claim in application 2020/1023, including in respect of left sciatic lumbar pain.
………………..[sgd]………….….
S. Webb, Member

PRACTICE & PROCEDURE – application for review of reconsideration decision denying liability in respect of a workers’ compensation claim – Tribunal’s jurisdiction - scope of claim – implied rejection – jurisdiction conferred.
Legislation
Administrative Appeals Tribunal Act 1975 ss 25, 37, 43.
Safety, Rehabilitation and Compensation Act 1988 ss 14, 38, 53-54, 60, 62, 64.
Cases
Abrahams v Comcare [2016] FCA 1829
Canute v Comcare [2006] HCA 47
Cheung v Administrative Appeals Tribunal [2009] FCA 241
Comcare v Muir [2016] FCA 346
Commonwealth of Australia v Snell [2019] FCAFC 57
Fuad and Telstra Corporation Ltd [2004] AATA 1182
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Kennedy v Comcare [2014] FCA 82
Lang v Comcare [2007] FCA 47
Less v Comcare [1999] FCA 753
Mununggurr v Comcare [2020] FCA 1786
Phillips v ACT [2021] ACAT 22
Szabo v Comcare [2012] FCAFC 129
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Telstra Corporation Ltd v Kotevski [2013] FCA 27
Walters and Comcare (Compensation) [2021] AATA 14
Wuth and Comcare (Compensation) [2020] AATA 3625
REASONS FOR DECISION
Mr S. Webb, Member
2 June 2021

Lisa Riepon is an employee of the Australian Capital Territory (ACT). She was recovering from a work injury, using crutches, when she attended a psychologist for treatment. At the entrance to the psychologist’s practice, she fell and landed on her left side. She experienced symptoms of pain and lodged a compensation claim in respect of an injury. The claims manager for the Australian Capital Territory, EML Limited, decided to accept part of the claim relating to a left shoulder injury, but refused the claim relating to left hip pain.[1] This decision was affirmed on reconsideration.[2]
[1] T29.
[2] T1.1.
Ms Riepon applied for review by the Tribunal under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) – application 2020/1023.
In the course of the resulting proceedings, an issue arose in respect of the Tribunal’s jurisdiction. The issue is whether the injury described in the claim form as “Pain in the left hip”[3] sustained at 3.00pm on 25 July 2019 can be properly construed as a claim in respect of “left hip and sciatica symptoms down to her knee”,[4] “left sciatic lumbar pain”[5] or “sciatic pain going down left buttock, left knee and down left leg”.[6] The ACT asserts that the claim should not be construed in this way.
[3] T24, folio 60.
[4] T20, folio 48.
[5] T29, folio 72
[6] T49, folio 120.
I note that Ms Riepon presently has a second application before Tribunal –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 1556
Decision Date: 2 June 2021

CaseChat Overview and Summary

This matter concerned an application by Ms Riepon against the Australian Capital Territory regarding a workers' compensation claim. The dispute centred on the decision-maker's handling of Ms Riepon's claimed conditions, particularly the exclusion of a claim for "left sciatic lumbar pain" and the consideration of other hip-related conditions. The decision was made by Mr S. Webb, a Member of the Tribunal.

The legal issues before the Tribunal were whether the decision-maker had adequately considered the entirety of Ms Riepon's claim, including the condition of "left sciatic lumbar pain," and whether the reconsideration decision properly addressed the claimed injuries. Specifically, the Tribunal needed to determine if the reconsideration decision maker was confined to the conditions identified in the original claim form or if they could consider fresh diagnoses and conditions presented in subsequent medical materials.

The Tribunal reasoned that the decision-maker had a responsibility to consider all available materials and make the correct or preferable decision. It was noted that the *Safety, Rehabilitation and Compensation Act* allows for progressive decision-making, meaning that a previous decision-maker's findings do not necessarily bind a future decision-maker. Therefore, a reconsideration decision maker could consider fresh diagnoses evident in the materials before them, even if they differed from the original diagnosis, as these could illuminate the nature or contributory causes of the claimed injury. The Tribunal found that the decision maker had, in fact, considered the entirety of Ms Riepon's claim, including the "left sciatic lumbar pain," and made a determination.

While acknowledging potential criticisms of the decisions made at both the primary and reconsideration levels, the Tribunal concluded that these criticisms were not sufficient to warrant referral of the matter to the Safety, Rehabilitation and Compensation Commission or the ACT Attorney General. The Tribunal affirmed its jurisdiction to address the entirety of Ms Riepon's claim, including the claim for left sciatic lumbar pain.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

While there may be valid bases on which to criticise the content of decisions made at the primary and reconsideration levels in Ms Riepon’s case, and I note particular concerns about the contents of the reconsideration decision, to my mind, these are not sufficient to justify referral of this matter to the Safety, Rehabilitation and Compensation Commission or to the ACT Attorney General, as requested.Decision The Tribunal has jurisdiction to address the entirety of Ms Riepon’s claim in application 2020/1023, including the claim in respect of left sciatic lumbar pain.

Ratio Decidendi

Legal Principle Established

It is sufficiently clear that the decision maker squarely considered the entirety of Ms Riepon’s claim, including in respect of ‘left sciatic lumbar pain’, and made, finally, a determination.Reconsideration decision On 18 February 2020, an EML Reconsiderations Officer issued a reconsideration decision[18] in respect of the 20 September 2019 determination.[18] T1.1. In the text of the reconsideration decision, the decision maker recounted the relevant background and summarised the contents of Ms Riepon’s request for reconsideration.[19] The decision maker set out other materials that were considered, including medical certificates issued by Dr Gan, rehabilitation reports[20] and medical imaging reports. It appears that these materials included an ultrasound scan of Ms Riepon’s left hip on Dr Gan’s referral.[21][19] T1.1, folio 7; see Ms Riepon’s request for reconsideration at T37.[20] See T38.[21] T31. In this context, the decision maker stated –I note that there was not a claim for left sciatic lumbar pain in your original claim form signed 11 August 2019. I am therefore unable to make a determination on this condition.The task before me is to decide where you are entitled to compensation for your claimed conditions of ‘left shoulder ligament strain, left neck sprain, left hip ligament strain and left hip trochanteric’.[22][22] T1.1, folio 7. It appears likely that the reconsideration decision maker proceeded to treat possible diagnoses of conditions affecting Ms Riepon’s left hip as elements of her compensation claim. There are three things to say about this. Firstly, ‘left hip ligament strain’ and ‘left hip trochanteric’ are not referred to in the text of Ms Riepon’s claim. These conditions were not raised or considered by the primary decision maker. It is to be noted that the SRC Act allows for progressive decision making,[23] where the facts found by a previous decision maker do not in all circumstances bind a future decision maker.[24] In particular, while the facts found (or matters considered) at the primary determination level may be accepted or revisited on reconsideration, they do not confine the scope of matters that may be considered. The reconsideration decision maker must make the correct or preferable decision on the available materials and, in so doing, may consider medical assessments, investigations and opinions that reflect the present state of medical understanding of the ailment claimed as an injury.[25] Thus, where a fresh diagnosis is evident in materials before a reconsideration decision maker, it may be considered even though it differs from the original diagnosis of the claimed injury. These are factual considerations for the decision maker that may illuminate the nature or contributory causes of the claimed injury. [23] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, per Conti J at [57].[24] Commonwealth of Australia v Snell [2019] FCAFC 57 at [60]-[63].[25] Cheung v Administrative Appeals Tribunal [2009] FCA 241 at [54].